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September 9, 1:23 PM
In a scathing admonition of a Bush Administration 9/11 policy, a panel of three judges on the 9th U.S. Circuit Court of Appeals found that a man detained as a material witness in a federal terrorism case, Abdullah al-Kidd, can sue former Attorney General John Ashcroft for allegedly violating his constitutional rights.
Two of the judges were appointed by former President George W. Bush and another by former President Reagan and all have a reputation of being politically conservative. Despite his political leanings, Judge Milan D. Smith Jr. wrote, "Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world…We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history."
The court’s decision rejects the notion that as prosecutor, Ashcroft would receive full immunity from lawsuits. Rather, the court held that he functioned more in the role of an investigator, which would render him liable. Some of the most convincing evidence of his role appears to come from Ashcroft himself. According to the ruling, Ashcroft said that the use of the material witness statute and other enhanced tactics "form one part of the department's concentrated strategy to prevent terrorist attacks by taking suspected terrorists off the street."
Al-Kidd’s lawyers have asserted that Ashcroft created a policy wherein governmental agencies used the federal material witness law as justification "to arrest and detain terrorism suspects about whom they did not have sufficient evidence to arrest on criminal charges but wished to hold preventively or to investigate further."
According to court documents, Lavoni T. Kidd, an African-American born in Wichita, Kansas, converted to Islam and changed his name to Abdullah al-Kidd.
In 2003, al-Kidd was surrounded by federal agents in Dulles Airport as he prepared to depart for Saudi Arabia in pursuit of international study in Islamic and Arabic law. Court documents suggest that al-Kidd was interrogated by the FBI, moved from Virginia to Oklahoma and then Idaho. According to his lawsuit, al-Kidd claims that he was jailed for 16 days in high-security cells that were lit 24 hours a day and that he was subjected to several strip searches.
The Associated Press (AP) reports that upon being released by court order, al-Kidd was required to live with his wife and in-laws in Nevada. He was additionally forced to surrender his passport, limiting his travel, report to a probation officer and be subjected to home visits. This supervision continued for a period of 15 months. By the time it was concluded, al-Kidd, a father of two, was separated from his wife and had been fired from his job for a government contractor because he was unable to receive the requisite security clearance.
The AP further reports that al-Kidd was declared a material witness simply because of his associations. “The government thought al-Kidd had crucial testimony in a computer terrorism case against fellow Idaho student Sami Omar Al-Hussayen. Al-Kidd and Al-Hussayen both worked on behalf of the Islamic Assembly of North America, a Michigan-based charitable organization that federal investigators alleged funneled money to activities supporting terrorism and published material advocating suicide attacks on the United States. A jury eventually acquitted Al-Hussayen of using his computer skills to foster terrorism and of three immigration violations after an eight-week trial. Al-Kidd, who had played football for the University of Idaho under the name Lavoni Kidd, was never charged with a crime.” Court documents further suggest that al-Kidd was never called to testify.
Al-Kidd’s lawyer claimed that the monitoring of his client began months before the material witness warrant was even issued. CNN reports that “the agents failed to tell the magistrate who issued the warrant that al-Kidd was an American citizen with family in the United States, or that he had previously cooperated with the FBI, his lawyer said. They also told the judge he had a one-way ticket, when he actually held a round-trip ticket, they said.” The court’s decision declared that "al-Kidd's arrest functioned as an investigatory arrest or national security-related pre-emptive detention, rather than as one to secure a witness's testimony for trial."
Although there is a possibility that the ruling may result in Ashcroft being forced to submit to a deposition, the judges noted that al-Kidd will have a sizeable burden in demonstrating that Ashcroft was personally involved in an illegal policy.
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